Harco Construction found guilty in fatal trench collapse

A Manhattan judge on Friday, June 10, 2016, found general contractor Harco Construction guilty of manslaughter in the trench-collapse death last year of worker Carlos Moncayo, above, in a verdict that could set a new standard for liability on construction sites. Photo Credit: Manhattan DA

A Manhattan judge Friday found general contractor Harco Construction guilty of manslaughter in the trench-collapse death of immigrant worker last year in a verdict that could set a tougher new standard for criminal liability on construction sites.

Judge Kirke Bartley also found the New York City company owned by Kenneth Hart guilty of criminally negligent homicide and three of four counts of reckless endangerment, boosting Manhattan District Attorney Cy Vance’s effort to use criminal prosecutions to stem construction deaths in New York City.

Carlos Moncayo, 22, an undocumented Ecuadoran immigrant living in Queens, worked for Long Island excavation subcontractor Sky Materials, which faces a future trial on the same charges. After the verdict, his mother, Blanca Garcia, wept as she spoke in Spanish to reporters outside Manhattan Supreme Court.

“Justice has prevailed,” said Garcia, who traveled from Ecuador to attend the three-week trial. “I was just very sad. I just thought about my son.”

Moncayo was buried alive on April 6, 2015, at a 9th Ave. site being readied for a Restoration Hardware store when an unshored 14-foot deep trench caved in. Prosecutors said Harco and Sky were reckless because they ignored warnings from inspectors. Harco lawyers argued Sky was responsible, and a general contractor couldn’t control the details of a subcontractor’s work.

Criminal convictions for worker deaths have been rare in the city. Immigrant worker advocates said they believed it was the first time a general contractor was convicted of manslaughter at trial for an on-site worker death, and they hoped it will spur greater safety efforts.

“We are happy that justice was done for the family, and we are very confident that contractors will take heed on what not to do,” said Omar Henriquez of Wantagh, an organizer with the National Day Labor Organizing Network, who helped assemble a large turnout of activists at the start and finish of the trial.

“Today’s guilty verdict should signal to the construction industry that managing a project from afar does not insulate a corporation or general contractor from criminal liability,” he said.

Harco lawyer Ron Fischetti blasted the verdict, which Bartley — who heard the case without a jury — did not explain.

“We’re extremely disappointed,” Fischetti said. “We intend to appeal at once. The judge’s ruling was wrong both on the law and the facts.”

Fischetti said that because of the verdict, “it appears that any tragic accident that happens on a construction site, without any evidence of wrongdoing the general contractor is liable.”

Bartley’s ruling “should send a chilling effect on any law-abiding contractor engaged in construction in New York City,” Fischetti said.

Harco could be ordered to pay a maximum $35,000 fine at sentencing in July, and may also face a review of its licensing by the city as well as hurdles in getting hired with a manslaughter conviction.

In addition to Sky, which has facilities in Calverton and Queens, Sky foreman Wilmer Cueva and Harco supervisor Alfonso Prestia face future trials over Moncayo’s death. Sky and its owner, Michael Cholowsky, have also been separately charged with insurance fraud for allegedly cheating on workers comp premiums.

Lawyers for Sky, Cueva and Prestia did not comment Friday.

Nadia Marin-Molina, an advocate with the New York Committee for Occupational Safety and Health, said those trials would be easier for prosecutors than the case against Harco.

“Most of the time the general contractors wash their hands of responsibility and they blame anyone else but themselves,” Marin-Molina said. “Now it’s clear . . . that general contractors as well as everyone else are responsible for safety.”

Gary LaBarbera, president of the Building and Construction Trades Council, concurred.

“Irresponsible contractors are now on notice that they can no longer put profits ahead of the safety of workers and that they will be held liable for their actions,” he said in a statement. “While we still grieve for Mr. Moncayo’s family, at least they know that justice has been served.”